MICHIGAN STATE UNIVERSITY. REPORT 1 OF 2 Review of Michigan State University s Policy on Relationship Violence and Sexual Misconduct

Transcription

1 MICHIGAN STATE UNIVERSITY REPORT 1 OF 2 Review of Michigan State University s Policy on Relationship Violence and Sexual Misconduct DATE ISSUED November 2017

2 Table of Contents EXECUTIVE SUMMARY 03 INTRODUCTION 05 Overview of Title IX...07 Overview of VAWA...08 Overview of Recent Case Law Trends...09 Overview of Peer Benchmarking...09 Overview of MSU Community Feedback...09 COMPLIANCE WITH TITLE IX AND VAWA 12 Notice of Nondiscrimination Title IX Coordinator Training and Education Programs Key Statements of Policy Key Procedural Elements...18 VAWA...20 ALIGNMENT WITH POLICY AND PROCEDURE BEST PRACTICE 24 Fair and Equitable Policy Statements Policy Clarifications Ease of Access and Use of Policy ALIGNMENT WITH PEERS 30 Designation of Responsible Employees Clear Penalty for Failure to Report Standard of Evidence...32 Investigation and Adjudication Models...33 Appeals Process and Factors Designated Title IX Staff Resources...37 Definition of Coercion...37 Other Key Policy and Procedures Benchmarking LEADING-EDGE PRACTICES 39 Collaborative Policy Work Group...40 Separating Duties for Investigation and Interim Measures Requests...40 Sanctioning Guidelines Intersection of Title IX and the First Amendment CONCLUSION 43 2

3 Executive Summary 3

4 EXECUTIVE SUMMARY Executive Summary Michigan State University has engaged Husch Blackwell to conduct a two-phase Title IX review related to the University s efforts to prevent and address sexual misconduct and comply with applicable legal requirements. This report is the first of two reports that, together, will identify MSU s strengths, as well as some areas for improvement, and shed light on the effectiveness of its broader Title IX program. This first phase of our work involved a detailed review of MSU s Title IX-related policies and procedures to determine whether these documents, as written, demonstrate compliance with Title IX. As described in more detail in this report, MSU s current Title IX policy and procedures reflect a strong and genuine institutional commitment to combatting sexual misconduct, creating a safe campus environment, as well as compliance with Title IX s legal requirements. MSU s policies and procedures are among the most comprehensive and robust we have seen. They provide detailed guidance to claimants, respondents, investigators, and adjudicators and set forth a fair and equitable process for resolving reports of sexual misconduct. Overall, MSU s policies and procedures comply with current legal requirements and agency guidance, and in several places, reflect leading-edge policy concepts that other institutions might consider replicating in their own policies. Further, based on our discussions with faculty, staff and students, there is strong evidence that key components of MSU s policies and procedures are permeating the campus community. For instance, students overwhelmingly reported that they believe students understand the concept of consent; several were able to quickly recite its definition. Faculty and staff reported that they believe most employees understand that they have an obligation to report sexual misconduct of which they become aware. In support of MSU s goal for continued improvement and expansion of leading-edge practices, we have identified a few elements of MSU s current practice that are not clearly stated in its policies and procedures. While MSU addresses many of these issues in its Title IX supporting documentation, we recommend that these items be expressly incorporated in its policy. Further, in light of new guidance issued by the Office for Civil Rights last month, we also recommend that MSU consider addressing a few key issues that were highlighted in the new guidance. Finally, there is one component of the policy that we identified which MSU should consider reevaluating. Specifically, we are concerned that MSU s policy requiring all responsible employees to not only notify the Title IX Coordinator of sexual misconduct of which they become aware, but to also notify law enforcement may be in tension with applicable legal requirements that vest victims with agency concerning whether to notify law enforcement. We acknowledge that there continues to be significant media attention around MSU s Title IX efforts that may suggest its policies and procedures are out of compliance. We disagree with this conclusion. Based on our comprehensive review, MSU s Title IX policy and procedures provide for a process that meets applicable legal requirements and agency guidance that with effective implementation creates a timely, fair and equitable resolution process for sexual misconduct reports, as required by law. These issues are discussed in more detail in this report. The second phase of our review will evaluate the effectiveness of MSU s broader Title IX program, including with respect to crisis and advocacy support services, prevention and education programs, and awareness and outreach efforts. We anticipate the delivery of the second report by the end of Spring Semester,

5 Introduction 5

6 INTRODUCTION At its core, Title IX is a civil rights law that was intended to help eliminate sex discrimination and inequity in America s schools, colleges, and universities. While the reach of Title IX has historically provided protection from various forms of sex discrimination, including sexual harassment, sexual violence, and gender stereotyping, up until the last decade, much of the nation s attention to Title IX issues related to inequity in athletics, particularly with respect to facilities, scholarships and sporting opportunities for female athletes. In 2011, a sea change occurred when the primary agency charged with enforcing Title IX, the U.S. Department of Education s Office for Civil Rights ( OCR ) 1, issued the first of several guidance documents that set sweeping new compliance expectations for how colleges and universities prevent and address allegations of sexual misconduct. Since that time, the higher education sector has substantially grown its Title IX infrastructure to support prevention, awareness and educational programming, provide resources to impacted parties, and refine institutions investigation and adjudication processes. In our experience working with colleges and universities across the country on Title IX policy development, training, investigations and litigation, we have observed a key trend: many institutions Title IX policies and practices are evolving and improving. With every case, with every training, institutions can improve upon prior practice and enhance their policies to better reflect their institutional values and fit their communities needs. For this reason, many institutions of higher education have embraced a culture of continuous self-analysis and improvement in this area. To this end, Michigan State University ( MSU or University ) has engaged Husch Blackwell to perform a two-phase Title IX review of the University s efforts to prevent and address sexual misconduct and comply with applicable legal requirements, agency guidance and best practices. During this first phase of our review, we conducted a concentrated compliance analysis of MSU s Policy on Relationship Violence and Sexual Misconduct (the RVSM Policy or policy ), together with its appendices 2 and other information published by MSU on its Title IX webpage. 3 In other words, the first phase of this review focused primarily on the documents that serve as the foundation for MSU s broader Title IX program. This included a focused review to determine whether MSU s policies and procedures documents: 1. Demonstrate compliance with Title IX of the Education Amendments Act of 1972, 4 as it pertains to institutional response to sexual harassment and sexual violence; 2. Meet the statutory requirements of the Violence Against Women Act reauthorization of 2013 ( VAWA ) and its associated amendments to the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act ( Clery Act ), 5 and its implementing regulations; 3. Comport with industry best practices and the practices of peer and comparator institutions; and 4. Demonstrate leading-edge practices that should be replicated by other institutions. For purposes of this report, it is important to note that our review focuses upon the state of MSU s policies and procedures, as they exist, at this date; our review does not include a retrospective review of prior policies, procedures or practices. The second phase of our review will evaluate the effectiveness of MSU s broader Title IX program, including with respect to crisis and advocacy support services, prevention and education programs, and awareness and outreach efforts. We anticipate the delivery of the second report by the end of Spring Semester, The U.S. Department of Justice shares enforcement authority over Title IX with OCR. See: 2015 Resource Guide, FN 1, page 1. 2 The policy and related appendices are available at: 3 Available at: U.S.C et seq.; Title IX also covers other issues such as gender equity in athletics and pregnancy accommodation. These other aspects of Title IX are beyond the scope of this review and are not discussed in this report. 5 VAWA amended a number of federal laws governing requirements for programs and grants that, for instance: support children and families; provide housing rights for victims of domestic abuse; and seek to eliminate backlogs in rape kit processing; among other things. Our review is limited to the portion of VAWA that amended the Higher Education Act of 1965, 20 U.S.C. 1092(f), also referred to as the Clery Act. 6

7 INTRODUCTION Overview of Title IX Title IX of the Education Amendments of 1972 prohibits institutions that receive federal funds from discriminating on the basis of sex in their education programs and activities. A longstanding principle of Title IX case law and agency interpretation is that the institutional failure to appropriately respond to sexual harassment and sexual violence can result in prohibited sex discrimination. For this reason, it is often said that Title IX prohibits sexual harassment and sexual violence, even though, in the strictest sense, Title IX regulates only institutional action, not the actions of individual persons. In the context of higher education, institutions are required to appropriately respond to all sexual harassment and sexual violence occurring within the context of their education programs and activities, which regulations define broadly as an institution s operations. For this reason, institutional policies prohibiting sexual harassment and sexual violence govern members of the campus community (such as administrators, faculty, staff and students), as well as other participants in the institution s programs and activities, such as visitors and vendors. Under the Obama Administration, OCR repeatedly issued sub-regulatory guidance documents (typically, referred to as Dear Colleague Letters ) to establish enforcement standards relating to Title IX compliance, particularly with respect to institutions responsibilities to prevent and address sexual harassment and sexual violence within their campus communities. While sub-regulatory guidance does not have the force and effect of law, the sweeping impact of these guidance documents along with a significant increase in OCR s Title IX enforcement activity resulted in significant changes within institutions of higher education, nationwide. Detailed policies explaining how reports of sexual misconduct should be handled were adopted, adjudication procedures were expanded, and some best practices emerged. Notably, in the midst of our review, a key source of compliance guidance was withdrawn by OCR. Specifically, on September 22, 2017, OCR withdrew extensive sub-regulatory guidance that had previously advised institutions of the agency s interpretation and application of Title IX in the context of preventing and addressing sexual harassment and sexual violence on college and university campuses. 6 Given OCR s recent withdrawal of prior guidance, it is important to keep in mind that our analysis of Title IX requirements is rooted in the statute itself, its implementing regulations at 34 C.F.R. Part 106, and currently applicable sub-regulatory guidance. The relevant sub-regulatory guidance documents involving sexual harassment and sexual violence include the following: APPLICABLE A document titled Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, published in January 2001 ( 2001 Guidance ). 7 This document explains that sexual harassment is covered by Title IX s prohibition of sex discrimination and describes an institution s responsibilities to prevent and address sexual harassment. APPLICABLE A Dear Colleague Letter published on August 4, 2004 ( 2004 DCL ) on the First Amendment and harassment. 8 APPLICABLE A Dear Colleague Letter published on August 4, 2004 ( 2004 DCL ) on sexual harassment. This document reminds institutions to designate a Title IX Coordinator, adopt and disseminate a nondiscrimination policy, and put grievance procedures in place to address complaints of sex discrimination. The 2004 DCL also states that the Department is committed to enforcing Title IX aggressively and highlights that recent investigations suggest some institutions may not have been vigilant in their compliance efforts. 9 APPLICABLE A Dear Colleague Letter published on January 25, 2006 ( 2006 DCL ) on sexual harassment. This document reaffirms the 2001 Guidance and restates that sexual harassment can be a form of sex discrimination prohibited by Title IX. 10 WITHDRAWN A Dear Colleague Letter published in April 2011 ( Withdrawn 2011 DCL ). The Withdrawn 2011 DCL substantially expands upon the 2001 Guidance and prescribes specific items that must be included (or are strongly 6 To date, we are unaware of any institution that has made sweeping changes to its Title IX policies and procedures as a result of OCR s recent withdrawal of previous guidance. To the contrary, it is our understanding that before making significant changes, most institutions are awaiting final guidance from OCR that may result from formal notice and comment rulemaking. To the extent that we become aware of institutions making significant changes to their policies and practices or new guidance or proposed regulations issued by OCR, we will provide an update on these developments in our second report. 7 The 2001 Guidance can be found at: 8 The 2003 DCL can be found at: 9 The 2004 DCL can be found at: 10 The 2006 Guidance can be found at: 7

8 INTRODUCTION recommended to be included) in an institution s policy and procedures related to sexual harassment and sexual violence. 11 This guidance was withdrawn by OCR on September 22, WITHDRAWN A guidance document, in Question-and-Answer format, published in April 2014 ( Withdrawn 2014 Q&A Guidance ). 12 The Withdrawn 2014 Q&A Guidance supplements the 2011 DCL by summarizing or further clarifying key points discussed in the 2011 DCL. The Withdrawn 2014 Q&A Guidance also provides additional information that an institution must consider when evaluating its Title IX compliance. This guidance was withdrawn by OCR on September 22, APPLICABLE A Dear Colleague Letter published in April 2015 ( 2015 DCL ). The 2015 DCL focuses on the role of an institution s Title IX Coordinator. 13 APPLICABLE A Title IX Resource Guide published in April 2015 ( 2015 Resource Guide ). This guide provides high-level information about various aspects of Title IX, including the Title IX Coordinator s responsibilities, grievances procedures, and notices of non-discrimination. The 2015 Resource Guide also discusses Title IX s application to other topics and cites to other available resources. 14 APPLICABLE A Dear Colleague Letter published September 22, 2017 ( 2017 DCL ). 15 The 2017 DCL informs the higher education community that OCR intends to engage in rulemaking to develop new Title IX regulations, withdraws the Withdrawn 2011 DCL and Withdrawn 2014 Q&A Guidance, and reaffirms its 2001 Guidance. APPLICABLE A guidance document, in Question-and-Answer format, published on September 22, 2017 ( 2017 Q&A Guidance ). 16 In large part, the Q&A Guidance supplements the 2017 DCL by summarizing or further clarifying key points discussed in the 2017 DCL. The 2017 Q&A Guidance also provides additional information that an institution must consider when evaluating its Title IX compliance. Although current guidance documents do not have the direct force of a law or regulation, they do reflect OCR s current position regarding Title IX enforcement. We have also highlighted concepts from the withdrawn guidance as instructive practices, particularly since many institutions current policies and procedures are aligned with these now-withdrawn standards. These are also relevant practices to consider, since some of the prior concepts could, in theory, be reinstituted as part of anticipated proposed regulations that will be subject to notice and public comment. Last, many of the concepts contained within withdrawn guidance are consistent with the spirit of OCR s current position with respect to due process, as well as the fair and equitable treatment of all parties. Overview of VAWA Though this review focuses significantly on Title IX, the 2015 VAWA amendments to the Clery Act are closely related to core Title IX obligations and must also be considered. The VAWA amendments intersect with Title IX because they require procedures for addressing complaints of sexual assault, dating violence, domestic violence and stalking. 17 Sexual assault falls squarely under Title IX s prohibition of sexual violence. Dating violence, domestic violence, and stalking will often also constitute sexual harassment or sexual violence, which also fall under Title IX. The result of the intersection between these laws is that institutions must have procedures in place for complaints of sexual assault, dating violence, domestic violence, and stalking that meets VAWA standards and Title IX standards. 11 The Withdrawn 2011 DCL can be found in archived format at: 12 The Withdrawn 2014 Q&A Guidance can be found in archived format at: 13 The 2015 DCL can be found at: 14 The 2015 Title IX Resource Guide can be found at: 15 The 2017 DCL can be found at: 16 The 2017 Q&A Guidance can be found at: 17 Clery Act regulations, including the VAWA amendments, which took effect on July 1, 2015, can be found at: FR /pdf/ pdf. 8

9 INTRODUCTION Overview of Recent Case Law Trends This phase of our work was informed by our review of court decisions involving relevant Title IX and constitutional due process issues within the Sixth Circuit Court of Appeals, which includes Kentucky, Michigan, Ohio and Tennessee. These cases focus primarily on three trends in Title IX civil claims: (1) deliberate indifference, (2) biased process / erroneous outcome, and (3) due process. It is important to keep in mind that federal court decisions resolve injunctive or money damages claims asserted by a plaintiff against an institution. That said, in many cases, the standard for civil liability is not the same as the standard for regulatory compliance (i.e., compliance with Title IX regulations or sub-regulatory guidance). For example, courts have often held that a failure to comply with Title IX regulations does not necessarily establish deliberate indifference sufficient to recover money damages under Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). 18 Because each case was decided on its facts, our reference to recent court decisions is only intended to provide instructive themes under each theory and to comment generally on how MSU s policies relate to those themes. In our experience in representing institutions of higher education in Title IX litigation, as well as counseling institutions on how to avoid litigation, such disputes are often so fact-specific that ascertaining a clear precedent is difficult, if not entirely elusive. For this reason, we do not render any opinion regarding how a hypothetical claim against MSU would be resolved in light of recent case decisions. Instead, MSU should work with its litigation counsel to carefully analyze the facts of any given dispute and the likely outcome of a lawsuit arising from such facts. Overview of Peer Benchmarking Our work also included an initial benchmarking analysis of key components of MSU s policy and procedures in comparison to peer institutions and comparator institutions. For purposes of these comparisons, we relied upon two cohorts of peers: (1) the remaining thirteen (13) institutions that make up the Big Ten Conference, of which MSU is a member, and (2) six (6) institutions of similar mission or which have recently been reviewed by OCR as part of an enforcement action or policy review. 19 Due to the degree of variation and nuance within each institution s Title IX-related policies and procedures, our analysis necessarily relied upon estimation in order to categorize similar approaches. For this reason, our results identify broad trends and are presented in aggregate form. While we anticipate that MSU will find our comparisons instructive, we have not identified institutions, as those colleges and universities are in the best position to speak to the specifics of their Title IX-related policies and practices. Overview of MSU Community Feedback In an effort to more clearly understand the context relating to MSU s policies and procedures for purposes of this report, and to begin our work to learn more about MSU s broader Title IX program for purposes of the second report, we also met with a number of University officials. These meetings included members of the immediate Title IX team within MSU s Office of Institutional Equity ( OIE ), as well as officials from other administrative offices and institutional committees that support the University s broader Title IX-related program work, including: The Committee on Violence Free Communities 20 ( VFC ) The VFC includes representatives from the Greek Life Office, LBGT Resource Center, MSU Police Department, MSU Safe Place, Office of General Counsel, OIE, Olin Health Center, Recreational Sports Self Defense Programs, Sexual Assault Program, Sexual Assault and Relationship Violence Prevention 18 In Davis, the Supreme Court recognized a narrowly implied cause of action arising from student-on-student sexual misconduct. While an institution is not vicariously liable under Title IX for a student s harassment or assault of another student, an institution can be liable for its own misconduct that results in sex discrimination. Such discriminatory conduct can take the form of deliberate indifference, that is, where an institution has (1) actual knowledge of sexual harassment; (2) is deliberately indifferent to the sexual harassment; and (3) where that deliberate indifference cause[s] [students] to undergo harassment or make[s] them liable or vulnerable to it. 526 U.S. at 645. See also: Williams ex rel. Hart v. Paint Valley Local Sch. Dist., 400 F.3d 360, 367 (6th Cir. 2005) (institution may be liable only where the recipient s response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances. ); see also: Stiles ex rel. D.S. v. Grainger County, 819 F.3d 834 (6th Cir. 2016), (the Court described the deliberate indifference standard as a high bar not to be confused with a mere reasonableness standard. ); see also, M.D. v. Bowling Green Independent School District, 2017 WL (6th Cir. 2017), (school was not deliberately indifferent where the school responded to a female student s report of sexual assault by promptly investigating the matter (obtaining a confession) and transferring the perpetrator to an alternative school for a period of time). 19 These schools include: the University of Virginia, University of Notre Dame, Stanford University, Miami University of Ohio, Cornell University and Columbia University. 20 The VFC s mission statement and information about the VFC is available at: Annual-Report-FINAL.pdf. 9

10 INTRODUCTION Program, Student Conduct and Conflict Resolution Office, the Women s Resource Center, and the Title IX Coordinator. The purpose of the organization is to support a campus culture free of relationship violence and sexual misconduct. For the academic year, the VFC has released reports highlighting recommendations relating to MSU s Title IX-related work as well as key accomplishments. In addition to regular meetings, the organization hosts open meetings each year. The Sexual Violence Advisory Committee 21 ( SVAC ) The SVAC is made up of representatives from faculty, staff and students who are appointed by the President for a one- or two-year term. Student representatives include one representative from the Associated Students of Michigan State University ( ASMSU ), MSU s student government body, as well as one representative from the Council of Graduate Students ( COGS ). The Committee is advised by representatives from the SVAC Prevention Program, the Sexual Assault Program, MSU Safe Place, Residential Education and Housing Services, Student Conduct and Conflict Resolution, OIE, MSU Police Department, and the Office of General Counsel. The Committee is charged with serving as a forum for community engagement and feedback on sexual violence and to provide input on the University programs and initiatives aimed at raising awareness and reducing the prevalence of sexual violence. In addition to regular meetings, SVAC hosts an annual open meeting to gather constituency feedback. Women s Council and Advisory Committees 22 The Women s Council and advisory committees to the Provost and Vice Presidents serve as a vehicle for women s voices amongst MSU and the greater community. The Women s Council s goal is to enhance the quality of women s lives on campus and provide a safe community, and it participates in a wide range of activities, ranging from rallies to educational events and training and volunteering. Appeals Officers Appeals officers reviewing cases adjudicated under the RVSM Policy include the Vice President for Student Affairs and Services, who reviews student appeals where separation from the University is recommended, and the Equity Review Officer, who reviews all faculty and staff appeals as well as student appeals where there is no violation or where a sanction less than separation has been determined. The Office of General Counsel ( OGC ) The Office of General Counsel provides legal advice and representation to the University through its President, Board of Trustees, and administration on a broad array of legal issues affecting a modern, public research institution. The Policy Work Group 23 A multi-disciplinary group comprised of faculty, staff and students, as well as the Title IX Coordinator, who assist in reviewing and updating the RVSM Policy annually. Many of the participants in the Work Group are connected to the RVSM Policy process either directly or through provision of services to students or employees. Students Meeting invitations were sent to students from a wide range of student groups, including the Associated Students of MSU (ASMSU), Council of Graduate Students (COGS), Residence Hall Association (RHA), Sexual Violence Advisory Committee (SVAC), Women s Council, Greek Councils, Council of Racial Ethnic Students (CORES), Council of Progressive Students (COPS), MSU Bands, Student Athletes, Council of Students with Disabilities, Sexual Assault and Relationship Violence (SARV) Prevention Program Peer Educators, Sexual Assault Crisis Intervention (SACI) Volunteers, International Studies and the Alliance of Queer and Ally Students ( the Alliance ). 24 Over the course of our meetings, we had the opportunity to talk with students, including representatives from MSU s athletic program, the Spartan Marching Band, ASMSU student government, students connected to Sexual Assault Crisis Intervention ( SACI ), 25 the Sexual Assault and Relationship Violence Program, International Student Association ( ISA ), 26 and students associated with Greek life. 21 SVAC s charge along with additional information about the organization is available at: pdf. 22 Information on the Women s Council and Advisory Committees is available at: 23 A multi-disciplinary group comprised of faculty, staff and students who assist in review and updating the RVSM Policy each year. 24 The Alliance is a student organization and one of the groups that forms the Council of Progressive Students under ASMSU. The Alliance has a tradition of campus and community political action and serves as a voice in ASMSU on queer issues. 25 SACI is a student organization comprised of undergraduate and graduate student volunteers who are trained to provide advocacy to survivors of sexual violence. Members staff a 24-hour crisis line, provide medical advocacy, and serve as peer educators. The group works with the MSU Counseling Center Sexual Assault Program to provide support, empathy, and information to survivors of gendered violence. 26 ISA is the largest international student organization of MSU, and it works to promote and enhance international awareness, cooperation, cultural diversity and dialogue among international students on campus, and between international and American students on campus and amongst wider communities. 10

11 INTRODUCTION Faculty and Staff Meeting invitations were also sent to a wide range of faculty and staff groups, including Faculty Senate, Center for Gender in a Global Context, Research Consortium for Gender-based Violence, Sexual Violence Advisory Committee (SVAC), Committee for Violence Free Communities (VFC), RVSM Policy Work Group, Women s Advisory Committees (Provost and Vice Presidents). Over the course of our meetings, we had the opportunity to talk with faculty from multiple disciplines and staff members from various University offices. These meetings occurred over the course of two full days on October 5 and October 11, 2017, as well as one evening session with student groups on October 22, 2017, and one afternoon session with faculty representatives on October 24, While our discussions during our on-site meetings occurred in an organic manner, with participants freely volunteering feedback and information on a host of issues relating to MSU s broader Title IX program and the RVSM Policy, we included questions focused on the following topics, among others: Awareness, knowledge and perceptions of the RVSM Policy, including specific terms and definitions; reporting options; and the investigation, adjudication and appeals processes; Awareness, knowledge and perceptions of the roles and responsibilities of OIE, the Title IX Coordinator, and confidential resources; Awareness, knowledge and effectiveness of awareness and training programming; Awareness, knowledge and perceptions of the role of responsible employees; and Fairness in the investigation and adjudication processes and availability of equitable resources, particularly with respect to individuals accused of policy violations. During these meetings, we identified a number of key themes from the input we received related to MSU s broader Title IX program: MSU s Title IX program has gone through a significant evolution in recent years and changes in this area have been positive and welcomed by the campus community; There is a broad sentiment among staff, faculty and the student groups involved in Title IX issues that MSU s Office of Institutional Equity has been infused with a strong team of staff members and a new Title IX Coordinator who actively facilitate community input and participation in the development and improvement of the broader Title IX program; Although there have been substantial changes resulting in an improved Title IX policy and procedures, there is a concern from the faculty, staff and students that skepticism from previous years relating to MSU s Title IX policies and procedures persists and continues to impact the campus community s perception of MSU s Title IX improvement efforts; and Many within the campus community continue to desire additional improvements and enhanced communication on Title IX issues, particularly with respect to MSU s implementation of the Title IX adjudication process. The vast majority of participants expressed appreciation for being given an opportunity to present feedback and felt this review demonstrated a meaningful commitment to continuous improvement. To the extent that we received specific feedback on substantive issues relating to MSU s policy and procedures, we have included that within this report. However, campus community members, including faculty and students, offered very little feedback relating to this topic, even when prompted for input on key elements including as they relate to fairness in the investigation and adjudication processes, investigation and adjudication models and reasons for or against utilizing a hearing model. Instead, the overwhelming majority of feedback from participants relates to topics that will be covered in our second report, which we will address there. 11

12 12 Compliance with Title IX and VAWA

13 COMPLIANCE WITH TITLE IX AND VAWA During the first phase of our review, we found that MSU s policy and procedures documents are the result of an ongoing and continuous improvement effort focused on preventing and addressing sexual misconduct in its campus community. For context, it is worth noting that MSU s Title IX program has evolved significantly over the last few years. Specifically, MSU s recent work in this area has included: Changes in its RVSM Policy and procedures, as articulated by OIE in its August, 2017 update on such changes 27 as well as a two-minute video that describes the changes; 28 Enhanced collaboration and communication between administrative offices and committees working on the development and implementation of the RVSM Policy through the expansion and clarification of missions and goals of the entities that provide input on Title IX-related issues; Increases in staffing and resources among the immediate and broader Title IX teams; Efforts to support stronger alignment in messaging and training, as demonstrated by MSU s active search for a position within OIE related to communications; and An expansion of Title IX-related resource documents, including Quick Reference Guides for claimants and respondents, by category of student, employees and individuals not affiliated with the University and Information Forms for claimants and respondents. 29 In many respects, MSU s Title IX program is in a constant state of motion, as additional improvements and enhancements to policy, procedures, training, staffing and communications are continually being considered and implemented. This work as demonstrated by MSU s revised policies and procedures reflects a strong and genuine institutional commitment to combatting sexual misconduct, creating a safe campus environment, as well as compliance with Title IX and VAWA requirements. MSU s efforts, as demonstrated in its policy and procedures and related resources available on its website, in several respects, exceed those we have seen at other institutions, including large and complex organizations like MSU. They provide detailed guidance to claimants, respondents, investigators, and adjudicators and set forth a fair and equitable process for resolving reports of sexual misconduct. Overall, MSU s policies and procedures comply with current legal requirements and agency guidance. In support of MSU s goal for continued improvement and expansion of leading-edge practices, we have identified a few components of MSU s current policies and procedures that could benefit from clarification, simplification, removal of redundant content, and the addition of provisions to cover compliance areas that may be addressed in supporting documentation, but that are currently unaddressed within the policy itself. Further, we have identified a few areas that could be expanded upon in order to address key issues that were highlighted in OCR s new guidance. Notwithstanding our recommendations, we recognize that institutions make policy decisions in light of several factors that go beyond compliance and legal risk, including alignment with institutional values, cultures and business needs, and that MSU may choose not to prioritize certain items for such reasons, among others. The following subsections address these key compliance requirement areas: 1. Notice of Nondiscrimination 2. Title IX Coordinator 3. Training and Education Programs 4. Key Statements of Policy 5. Key Procedural Elements 6. VAWA 27 OIE s summary of updates to the RVSM Policy and resources for the academic year including new sanctioning guidelines, a glossary of terms, student conduct sanction and appeals procedures, and employee responsibilities is available at: 28 MSU s video explaining changes to the RVSM Policy, as well as information on MSU s Title IX website is available at: watch?v=i4t6xd-vaqi&feature=youtu.be. 29 Resources are available at: 13

14 COMPLIANCE WITH TITLE IX AND VAWA Notice of Nondiscrimination Title IX and other OCR-enforced statutes require institutions to publish a notice of nondiscrimination. 30 With regard to Title IX, the notice must advise prospective and current members of the institutional community of the following: The institution does not discriminate on the basis of sex in its educational programs or activities, including specifically with respect to employment and admissions; Title IX prohibits the institution from discriminating on the basis of sex in its educational programs and activities; The name or title, office address, and telephone number of the designated Title IX Coordinator; and Inquiries concerning Title IX can be referred to the institution s designated Title IX Coordinator or to OCR. MSU s Notice of Non-Discrimination 31 covers the standards outlined above. Title IX Coordinator Title IX requires institutions to designate at least one individual to coordinate its Title IX compliance efforts and to receive complaints of sex discrimination. 32 MSU has done this. Training and Education Programs OCR has continually conveyed the importance of training and educational programming in the realm of Title IX. 33 These expectations overlap with training and educational programming requirements imposed by VAWA. While this phase of our review is not intended to analyze these training and educational programming requirements, we have provided an outline of the obligations imposed by both laws in Appendix A of this report for MSU s reference. This requirement will be evaluated in the second phase of our review. Key Statements of Policy After considering the currently applicable guidance, and based on our experience, the items below outline information that we believe should be covered in MSU s RVSM Policy in order to demonstrate compliance with Title IX requirements, and our analysis of MSU s efforts in satisfying these requirements. For some items, we provide further explanation in bullet points following the policy statement. 30 See 34 C.F.R ; see also: Notice of Non-Discrimination (August, 2010), available at: pdf. 31 Available at: 32 See 34 C.F.R (a); see also: 2015 DCL and 2015 Resource Guide; see also, 2017 Q&A Guidance, Answer, Question See 2015 DCL, (discussion of training for Title IX Coordinators); see also VAWA regulations 34 C.F.R (k)(2)(ii) (discussion of training for officials involved in investigations and final decisions relating to disciplinary actions of alleged dating/domestic violence, stalking or sexual assault.) 14

15 COMPLIANCE WITH TITLE IX AND VAWA An adequate definition of sexual harassment. 34 We only have one minor point on this definition. The RVSM Policy provides that A person s subjective belief alone that behavior is offensive does not necessarily make that behavior sexual harassment. The behavior must also be objectively offensive. While we understand what is intended, we believe this language could benefit from some clarification. Specifically, we recommend MSU consider the following modification: A person s subjective belief alone that behavior is offensive does not necessarily mean the conduct rises to the level of a policy violation. The behavior must also objectively meet the definition of prohibited sexual harassment. An explanation as to when sexual harassment creates a hostile environment. 35 Examples of the types of conduct that constitute sexual harassment. 36 An adequate definition of sexual violence. 37 We only note one suggested modification to an example of the term rape, which includes this example: Non-consensual penetration, no matter how slight, of the victim s genital opening, anus, or mouth with any body part or object. While we are aware that in practice this has never occurred, this definition, technically speaking, would include the act of inserting food without consent into another person s mouth. While that may violate some other conduct policy, we recommend this example be modified to eliminate this unintended interpretation. An adequate definition of consent (as it relates to sexual violence). 38 We note that during our onsite discussions, students unanimously and confidently reported that consent is a concept that has pierced the student awareness bubble and is understood amongst the campus community. One student offered that a majority of students would be able to articulate the key components of this definition, if asked. Many institutions policies emphasize the point that consent can be withdrawn at any time during a sexual encounter. Indeed, this language appears in the RVSM Policy. However, as a point of practice, we find that this language is vague and could be misinterpreted to mean consent can be retroactively withdrawn. We suggest that MSU consider revising this language to specify that consent can be withdrawn at any time during the sexual encounter, at which point any further sexual activity becomes non-consensual. An explanation that prohibited sex discrimination covers sexual harassment, including sexual violence Guidance, discussion on the definition of harassment, p. v Guidance, discussion on the definition of harassment, p. v Guidance, discussion on quid pro quo and hostile environment and accompanying examples, pp Resource Guide, discussion on sex-based harassment, p Resource Guide, discussion on sex-based harassment, p Resource Guide, discussion on sex-based harassment, p

16 COMPLIANCE WITH TITLE IX AND VAWA Title IX covers sexual misconduct when the claimant and alleged perpetrator are members of the same sex. 40 Section II of the RVSM Policy specifically explains that the policy applies to individuals, regardless of gender, sexual orientation, or gender identity. While this language broadly applies to individuals of the same sex, we recommend that the RVSM Policy be revised to specifically include this language. Title IX covers claims of harassment based on failure to conform to stereotypical notions of masculinity or femininity (i.e., gender stereotyping). 41 MSU s Anti-Discrimination Policy (ADP) and its main Title IX webpage both address the point that Title IX prohibits discrimination based on gender stereotyping. However, while discrimination based on gender stereotyping is prohibited by the ADP, the RVSM Policy does not explicitly include gender stereotyping harassment as a basis for a policy violation. OCR has long taken the position that gender stereotyping is a form of sex discrimination, and courts have generally agreed with this view. 42 Accordingly, we recommend that institutions include within their examples of sexual harassment at least one example that illustrates the concept of gender stereotyping. One such example is as follows: Sexual harassment includes harassing a male because he allegedly isn t manly enough or a female because she allegedly is too manly. On a related issue, an outstanding legal question in the Sixth Circuit and many other federal circuits is whether Title IX s prohibition on sex discrimination extends to gender identity. 43 To be clear, OCR is currently not enforcing and withdrew prior guidance that interpreted Title IX to prohibit gender identity discrimination. 44 However, while Michigan law does not currently speak explicitly to this issue, 45 an applicable executive directive, issued in 2007 by then-governor Jennifer Granholm, prevents public employers from engaging in discrimination on the basis of gender identity or expression. 46 Under this executive directive, gender identity or expression is a protected class for public employees, but students are not explicitly mentioned. That said, the University is under no compliance obligation to extend the RVSM Policy to claims based on gender identity discrimination, but it may be inconsistent with the spirit of the law for a Michigan public employer to permit discrimination on the basis of gender identity against students. Further, we note that gender identity is a protected category listed in MSU s broader Anti-Discrimination Policy ( ADP ). 47 For these reasons, MSU may want to also consider including harassment based on gender identity or expression in the RVSM Policy. 48 Title IX protects all students regardless of national origin. The 2015 Resource Guide specifically provides that Title IX protections apply regardless of national origin. Notably, OCR s Withdrawn 2014 Q&A Guidance specifically extended to individuals irrespective of national origin, immigration status or Guidance, discussion of harassment by parties of the same sex as the victim, pp , FN Guidance, discussion of harassment based on gender stereotypes, p. v, and pp , FN 11; see also, Dodds v. United States Dep t of Educ., 845 F.3d 217, 221 (6th Cir. 2016) ( Under settled law in this Circuit, gender nonconformity, as defined in Smith v. City of Salem, is an individual s fail[ure] to act and/or identify with his or her gender... Sex stereotyping based on a person s gender non-conforming behavior is impermissible discrimination. 378 F.3d 566, 575 (6th Cir. 2004) ) Guidance, p. 25, FN The Supreme Court was potentially set to resolve in its term the issue of whether gender identity discrimination is included within Title IX s prohibition on sex discrimination, but it remanded the operative case, Grimm v. Gloucester Co. School Board, 654 F. App x 606 (4th Cir. 2016), when OCR withdrew its relevant guidance in early Since Grimm was remanded, in the summer of 2017, the Seventh Circuit issued a decision in Whitaker v. Kenosha Unified Sch. Dist. No. 1, 858 F.3d 1034 (7th Cir. 2017), holding that discrimination on the basis of gender identity is included in Title IX s prohibition on sex discrimination. A petition for certiorari in Kenosha is pending before the Supreme Court. The Sixth Circuit is currently considering the issue in the pending appeal of the decision in Board of Education of the Highland School District v. United States Department of Education, 208 F. Supp.3d 850 (S.D. Ohio 2016). 44 Under the Obama Administration, DOJ and OCR issued a joint DCL on May 13, 2016 explaining that prohibitions on sex discrimination under Title IX require access to sex-segregated facilities based on gender identity. This joint DCL was withdrawn by the current Administration on February 22, The prior guidance is available at: The DCL withdrawing this guidance is available at: 45 We understand that in September of 2017, some Michigan citizens engaged in advocacy efforts in an effort to persuade the Michigan Civil Rights Commission to interpret Michigan s Civil Rights Act, MCL , et seq., to include broader protections for the LGBT community, including with respect to gender identity. However, we understand that Commission requested a formal Attorney General opinion on the Commission s ability to expand the interpretation of the Civil Rights Act s protection and that this request is, to date, still pending. 46 Executive Directive is available at: 47 MSU s Anti-Discrimination Policy is available at: 48 Available at: 16